Saturday, December 31, 2011

Just came across the website in which the Leadership Conference on Civil and Human Rights discusses United States sentencing disparities. One salient point they discuss is this:

"Unequal treatment of minorities characterizes every stage of the process. Black and Hispanic Americans, and other minority groups as well, are victimized by disproportionate targeting and unfair treatment by police and other front-line law enforcement officials; by racially skewed charging and plea bargaining decisions of prosecutors; by discriminatory sentencing practices; and by the failure of judges, elected officials and other criminal justice policy makers to redress the inequities that become more glaring every day."

The ACLU addressed sentencing inequities last March. One disparity that has been well-known are the sentencing guidelines for using/selling drugs. They appealed to the Sentencing Commission to restore fairness to sentencing.

"...you might call (this) the “crime du jour” problem. That is, legislators get worked up about a particular offense, either because it’s been in the news or for some other reason. As a result, they create penalties for it, but the penalties reflect their being particularly worked up at that moment. A year or so later when it’s no longer such a hot topic, that penalty sticks out as being exaggerated."

Another crime du jour of recent times is corporate crime.
"The increase in sentence severity is a nationwide phenomenom, though federal sentences are extremely harsh. Severity has ratcheted up and up again in the federal system. Both the sentences imposed and time served has increased dramatically. For example, the average federal sentence imposed between 1980 and 1995 nearly doubled, and federal offenders sentenced in 1998 will spend roughly twice as long in prison as their counterparts who were sentenced in 1984."

Sara Sun Beale, "Is Corporate Criminal Liabililty Unique?"

Sentencing has become a political tool. Politicians get on band-wagons to quell popular outrage. In the end we have situations where there is no justice, equity, fairness or reason to the sentences that levied against individuals being punished in the US Criminal Justice System.

The only purposes of imprisonment are “retribution, deterrence and incapacitation, not rehabilitation,” said the Ninth U.S. Circuit Court of Appeals in San Francisco, relying on the U.S. Supreme Court’s recent interpretation of a 1984 sentencing law. The ruling, written by one of the court’s most conservative judges, Andrew Kleinfeld, overturned a Hawaii man’s two-year sentence for violating the terms of his release and sent the case back to the trial judge to impose a shorter term.

Los Angeles Times:

Judges may not send criminals to longer terms in federal prison with the aim of rehabilitating them, the Supreme Court ruled.

Efforts by the US Sentencing Commission and various state sentencing commissions have always been aimed at some form of judicial equity whereby two people committing the same crime get the same punishment, all other things being equal.

Unfortunately, that’s not what happens.

One gross injustice is the plea bargain issue where prosecutors offer defendants a small amount of time behind bars. Defendants who decline that offer and opt for a jury trial frequently end up with a much longer sentence than they were offered to plead guilty. This essentially compromises the basic constitutional right to a jury trial, making the penalty far greater if one exercises their right.

Lately, there have been efforts to punish people “more” than they might ordinarily be punished with inflated sentences to set a standard and use as an example.

Such a recent example this week is that of former Governor Rod Blakojevic:

USA Today:

"When it is the governor who goes bad, the fabric of Illinois is torn and disfigured and not easily repaired," U.S. District Judge James Zagel told Blagojevich. "The harm is the erosion of public trust in government."

U.S. Attorney Patrick Fitzgerald said at a news conference that the sentence "sends a strong message that the public has had enough and judges have had enough. This needs to stop."

Fitzgerald said the sentence is the longest ever imposed on an Illinois governor. The prospect of "a significant penalty" should deter other politicians who think they can get away with corruption, he said.

State Rep. Jack Franks, a Democrat who served on the impeachment committee, says he hopes the sentence serves "as a warning to those in public service" that "accountability and integrity" still matter.

To further complicate this, we have the “crime du jour,” the bandwagon of the era where everyone jumps on and says “we should punish this crime more than all the others.”

In the 1980’s and 1990’s, it was crack cocaine. The belief that crack cocaine was so much more dangerous than cocaine powder (though they are the same substance), led to harsh sentencing inequities that are still being remediated today.

What I see in our criminal justice system is emotional response, anger and mob lynching attitudes taking over any reasonableness and fairness in the sentences being given.